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Ambiguities of the Establishment Clause

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Every word of the establishment and religion clauses is open to interpretation. The primary ambiguity is in the word “establishment”.

This may be seen as referring to: (1) only involuntary participation in religious activity or the formation of a state church, as in Kennedy’s dissent in Country of Allegheny v. ACLU (1989), (3) any law which does not match a civic purpose, as in Lemon v. Kurtzman (1971), (3) any law which a) advances or inhibits religion or b) advances or inhibits one religion over another, as in most cases, or (4) any law that would warrant a subjective impression of government support for religion, as with O’Connor’s opinion in Lynch v. Donnelly (1984) (First Amendment Center, 2007).

As related to public welfare funds, there arises a natural ambiguity as to whether “establishment” is to be seen from the point of view of the taxpayer or the beneficiary. In Everson v. Board of Education (1947), all justices seemed to agree that establishment consisted of two parts: (1) government commingling with the religious sphere, and (2) government infringement of individual religious liberty. The explicit question was whether the reimbursement of transportation costs of children attending parochial schools breached (1) and (2).

Perhaps the implicit question, however, was whether “establishment” was to be seen as applying to the taxpayer or the beneficiary of public welfare funds. The majority emphasized “establishment” as discrimination in the disbursement of public welfare money, which would violate (1). It also emphasized that the reimbursements, after being dispensed, only provided a religious alternative to recipients, the denial of which would constitute (2).The minority clearly emphasized “establishment” from the perspective of the taxpayer for public welfare, so that taxation for such programs violated (1) and (2).

In Zelman v. Simmons-Harris (2002) the ambiguity involving the concept of public money and  public welfare spending continued. In this case it was upheld that school vouchers did not violate the establishment clause because, “The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits,” once again effectively viewing “establishment” as a function of the level of choice available to the beneficiary, and not to the taxpayer.

There is further ambiguity as  to whether “religion” refers to a favored religion or to all religion. In Engel v. Vitale (1962) the majority held that “religion” includes non-denominational prayer, while the minority disagreed. Another ambiguity is the application of the term “religion” in practice. This is seen Wisconsin v. Yoder (1972), where the case concerned compulsory school attendance of Amish children beyond eighth grade. Most of the majority’s decision involved an explanation of “Amish claims as to the nature of their faith.” Protection of this faith is shown to be linked to protection of the Amish way of life, so that the way of life itself falls under the scope of “religion”.

Another question is the relationship between the establishment and religion clauses. There is a tension between the word “establishment” in the establishment clause and “free exercise” in the religion clause. In Engel v. Vitale (1962) the question was the legality of school prayer.

The majority held that “establishment” refers to the institutionalized quality of the prayer, irrespective of whether the prayer is compulsory or voluntary, and that “free exercise” refers to that which is not involved with the government. In the dissenting opinion it is held that “establishment” is not determined by the quality of institutionalization but by the voluntary or involuntary quality of the prayer, and that to claim otherwise interferes with “free exercise”.


Engel v. Vitale, 370 U.S. 421 (1962). Retrieved April 9, 2007, from University of Missouri-

Kansas City School of Law Web site:


Everson v. Board of Education, 330 U.S. 1 (1947). Retrieved April 9, 2007 from University of

Missouri-Kansas City School of Law Web site:


First Amendment Center. (2007). Establishment clause. Retrieved April 9, 2007 from


Wisconsin v. Yoder, 406 U.S. 205 (1972). Retrieved April 9, 2007 from University of Missouri-

Kansas City School of Law Web site:


Zelman v. Simmons-Harris, 536 U.S. 639 (2002). Retrieved April 9, 1007 from US Supreme

Court Media: OYEZ Web site: http://www.oyez.org/cases/2000-


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